Citation Nr: 1101851
Decision Date: 01/18/11 Archive Date: 01/26/11
DOCKET NO. 05-34 599 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUES
1. Entitlement to service connection for residuals of
thrombophlebitis of the right leg, including as secondary to
service-connected bilateral knee disabilities.
2. Entitlement to service connection for residuals of a cold
injury to the right hand.
3. Entitlement to service connection for right ear hearing loss.
4. Entitlement to service connection for plantar fasciitis,
including as secondary to service-connected bilateral knee
disabilities.
5. Entitlement to service connection for bilateral hip
disability, including as secondary to service-connected bilateral
knee disabilities.
6. Entitlement to service connection for diabetes mellitus.
7. Entitlement to service connection for hypertension.
8. Entitlement to service connection for arthritis of the neck
and back, including as secondary to bilateral hip disability.
9. Entitlement to service connection for an acquired psychiatric
disorder which will include depression and posttraumatic stress
disorder (PTSD), including as secondary to service-connected
disabilities.
10. Entitlement to an increased rating for a left knee
disability, currently rated 10 percent disabling.
11. Entitlement to an increased rating for a right knee
disability, currently rated 10 percent disabling.
12. Entitlement to an increased initial rating for left ear
hearing loss.
13. Entitlement to a total disability rating based on individual
unemployability (TDIU).
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
S. Lipstein, Associate Counsel
INTRODUCTION
The Veteran served on active duty from August 1980 to April 1987.
The right leg, right hand, psychiatric, right ear hearing loss,
bilateral foot, bilateral hip, left knee, right knee, and left
ear hearing loss matters come to the Board of Veterans' Appeals
(Board) from a February 2005 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Columbia, South
Carolina. The diabetes, hypertension, arthritis, and TDIU
matters come to the Board from a December 2007 rating decision of
the VA RO in Cleveland, Ohio.
The Veteran testified at a hearing before the Board in August
2010.
The Board notes that additional evidence was submitted at the
Board hearing along with a waiver of RO review.
Additionally, the Montgomery, Alabama RO has processed this case
since the December 2007 rating decision of the Cleveland, Ohio
RO.
The issues of service connection for right leg, right hand,
bilateral foot, bilateral hip, diabetes mellitus, hypertension,
arthritis, and psychiatric issues, as well as the TDIU and
increased rating for left ear hearing loss issues are addressed
in the REMAND portion of the decision below and are REMANDED to
the RO via the Appeals Management Center (AMC), in Washington,
DC.
FINDINGS OF FACT
1. The Veteran does not experience any current hearing loss.
2. The left knee is not manifested by ankylosis; by recurrent
subluxation or lateral instability; by frequent episodes of joint
effusion or locking; by flexion limited to 30 degrees; by
extension limited to 15 degrees; or by impairment of the tibia
and fibula.
3. The right knee is not manifested by ankylosis; by recurrent
subluxation or lateral instability; by frequent episodes of joint
effusion or locking; by flexion limited to 30 degrees; by
extension limited to 15 degrees; or by impairment of the tibia
and fibula.
CONCLUSIONS OF LAW
1. Bilateral hearing loss was not incurred in or aggravated by
service, nor may sensorineural hearing loss, as an organic
disease of the nervous system, be presumed to have been incurred
in service. 38 U.S.C.A. §§ 1112, 1113, 1131, 1154, 5103, 5103A,
5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304,
3.307, 3.309, 3.385 (2010).
2. The criteria for a disability evaluation in excess of 10
percent for a left knee disability have not been met. 38
U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R.
§§ 3.159, 4.1-4.14, 4.40-4.46, 4.71a, Diagnostic Codes (DCs)
5256-5262 (2010).
3. The criteria for a disability evaluation in excess of 10
percent for a right knee disability have not been met. 38
U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R.
§§ 3.159, 4.1-4.14, 4.40-4.46, 4.71a, DCs 5256-5262 (2010).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Veterans Claims Assistance Act of 2000
Before addressing the merits of the Veteran's claim on appeal,
the Board is required to ensure that the VA's "duty to notify"
and "duty to assist" obligations have been satisfied. See 38
U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010)
Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Pelegrini
v. Principi, 18 Vet. App. 112 (2004). The notification
obligation in this case was accomplished by way of a letter from
the RO to the Veteran dated in August 2004. The Veteran was
provided with notice of the types of evidence necessary to
establish a disability rating and the type of evidence necessary
to establish an effective date with regard to the knee issues in
August 2006 and with regard to the right ear hearing loss issue
in March 2008. Dingess/Hartman v. Nicholson, 19 Vet. App. 473
(2006). Despite initial inadequate notice provided to the
Veteran, the Board finds no prejudice to him in proceeding with
the issuance of a final decision. See Bernard v. Brown, 4 Vet.
App. 384, 394 (1993) (where the Board addresses a question that
has not been addressed by the agency of original jurisdiction,
the Board must consider whether the appellant has been prejudiced
thereby). In any event, since the Board concludes below that the
preponderance of the evidence is against entitlement to service
connection for right ear hearing loss and increased ratings for
the knee issues, any questions as to the appropriate disability
rating for the right ear hearing loss issue and effective dates
to be assigned are rendered moot.
The RO also provided assistance to the Veteran as required under
38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under
the facts and circumstances in this case. The evidence of record
contains the Veteran's service treatment records, as well as
post-service VA and private medical records. The evidence of
record also contains reports of VA examinations performed in June
1999, November 2004, May 2007, and June 2010 with regard to the
right ear hearing loss issue, and reports of VA examinations
performed in November 2004 and May 2007 with regard to the knee
issues. The examination reports obtained are fully adequate and
contain sufficient information to decide the issues on appeal.
See Massey v. Brown, 7 Vet. App. 204 (1994). In this regard, the
audio examinations contain the pertinent clinical findings as to
hearing impairment and other findings relevant to the pertinent
diagnostic codes. Additionally, the knee examinations contain
the pertinent clinical findings as to range of motion in the
knees and other findings relevant to the pertinent diagnostic
codes. The Veteran and his representative have not made the RO
or the Board aware of any additional evidence that needs to be
obtained in order to fairly decide this appeal, and have not
argued that any error or deficiency in the accomplishment of the
duty to notify and duty to assist has prejudiced him in the
adjudication of his appeal. Mayfield v. Nicholson, 19 Vet. App.
103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir.
2006). Therefore, the Board finds that duty to notify and duty
to assist have been satisfied and will proceed to the merits of
the Veteran's appeal.
Hearing Loss
Criteria & Analysis
The Veteran has claimed entitlement to hearing loss due to
exposure to noise from artillery and working as a truck driver
during active service. The Veteran served as a Motor Transport
Operator during service.
Applicable law provides that service connection will be granted
if it is shown that the veteran suffers from disability resulting
from injury suffered or disease contracted in line of duty, or
for aggravation of a pre-existing injury suffered or disease
contracted in the line of duty, in the active military, naval or
air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303,
3.304, 3.306. That an injury occurred in service alone is not
enough; there must be chronic disability resulting from that
injury. If there is no showing of a resulting chronic condition
during service, then a showing of continuity of symptomatology
after service is required to support a finding of chronicity.
38 C.F.R. § 3.303(b). Service connection may also be granted for
any disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the disease
was incurred in service. 38 C.F.R. § 3.303(d).
Certain chronic disabilities, such as sensorineural hearing loss,
are presumed to have been incurred in service if manifest to a
compensable degree within one year of discharge from service. 38
U.S.C.A. §§ 1101, 1112, 1133; 38 C.F.R. §§ 3.307, 3.309. In an
October 4, 1995, opinion, VA's Under Secretary for Health
determined that it was appropriate to consider high frequency
sensorineural hearing loss an organic disease of the nervous
system and therefore a presumptive disability.
For the purposes of applying the laws administered by VA,
impaired hearing will be considered to be a disability when the
auditory threshold in any of the frequencies 500, 1000, 2000,
3000, 4000 Hertz (Hz) is 40 decibels or greater; or when the
auditory thresholds for at least three of the frequencies at 500,
1000, 2000, 3000, or 4000 Hz are 26 decibels or greater; or when
speech recognition scores using the Maryland CNC Test are less
than 94 percent. 38 C.F.R. § 3.385.
A service Report of Medical Examination dated in May 1980 for
enlistment purposes reflects that the Veteran's ears were
clinically evaluated as normal. Audiometric testing showed pure
tone thresholds, in decibels, as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
5
5
5
10
10
A Report of Medical History dated in May 1980 for enlistment
purposes reflects that the Veteran checked the 'no' box for
hearing loss.
Audiometric testing dated in April 1985 showed pure tone
thresholds, in decibels, as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
15
20
20
20
20
A Report of Medical History dated in November 1985 for "5 year
physical" purposes reflects that the Veteran checked the 'no'
box for hearing loss.
A Report of Medical Examination dated in April 1986 for periodic
purposes reflects that the Veteran's ears were clinically
evaluated as normal. Audiometric testing showed pure tone
thresholds, in decibels, as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
20
20
15
20
30
Audiometric testing dated in April 1986 showed pure tone
thresholds, in decibels, as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
20
20
15
20
30
A Report of Medical Examination dated in February 1987 for
Medical Board purposes reflects that the Veteran's ears were
clinically evaluated as normal. Audiometric testing showed pure
tone thresholds, in decibels, as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
30
30
20
35
25
A Report of Medical History dated in February 1987 for Medical
Board purposes reflects that the Veteran complained of hearing
loss.
The Veteran underwent a VA examination in June 1999. He reported
hearing difficulty from time to time, with the greatest
difficulty on the telephone. He stated that the situation of
greatest difficulty was hearing different rings from a telephone.
He reported that he was in artillery and worked as a truck driver
during service. Speech recognition testing showed a score of 96
percent for the right ear. Audiometric testing showed pure tone
thresholds, in decibels, as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
10
20
20
20
25
The examiner diagnosed essentially normal hearing sensitivity in
the right ear.
The Veteran underwent another VA examination in November 2004.
He reported difficulty hearing his wife from time to time.
Speech recognition testing showed a score of 96 percent for the
right ear. Audiometric testing showed pure tone thresholds, in
decibels, as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
20
20
15
20
20
The examiner diagnosed essentially normal hearing sensitivity in
the right ear.
The Veteran underwent another VA examination in May 2007. Speech
recognition testing showed a score of 96 percent for the right
ear. Audiometric testing showed pure tone thresholds, in
decibels, as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
20
25
25
25
30
The examiner diagnosed right ear hearing within normal limits.
The Veteran underwent another VA examination in June 2010.
Speech recognition testing was not reported because the scores
appeared to be elevated based on the previous test and what would
be expected based on reported thresholds. Audiometric testing
showed pure tone thresholds, in decibels, as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
20
20
25
25
35
The examiner noted that results suggested normal hearing acuity
for thresholds in the right ear.
The Board finds that the preponderance of the evidence is against
the Veteran's claim of service connection for right ear hearing
loss. Based on the objective findings in the VA examinations,
there are no audiometric findings which meet the criteria for
service connection for hearing loss. See generally 38 C.F.R.
§ 3.385. The Veteran has not identified or submitted any medical
evidence which shows any current right ear hearing loss
disability. A service connection claim must be accompanied by
evidence which establishes that the claimant currently has a
disability. Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992);
Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Simply put,
service connection is not warranted in the absence of proof of
current disability.
The Veteran is certainly competent to report symptoms such as,
for example, pain, which are easily recognizable symptoms that
come through senses. In some cases, a layperson can even proffer
a competent diagnosis of a disorder. See Jandreau v. Nicholson,
492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a
veteran is competent to provide a diagnosis of a simple condition
such as a broken leg, but not competent to provide evidence as to
more complex medical questions). The Board finds that the
determination of whether the Veteran has current right ear
hearing loss is not a matter susceptible to lay opinion. VA
requires specific audiometric and speech reception testing
criteria to be met before the presence of a hearing loss
"disability" is established, and it is not even remotely
reasonable to conclude that a layperson can offer his or her
opinion as to the level of puretone decibel loss or speech
discrimination present. Therefore, this is not a case in which
the Veteran's lay opinions alone can suffice to establish the
presence of a current disability.
For these reasons, the Board finds that a preponderance of the
evidence is against the Veteran's claim for service connection
for right ear hearing loss and the claim must be denied. Because
the preponderance of the evidence is against the claim, the
benefit of the doubt doctrine is not for application. See 38
U.S.C.A. § 5107; 38 C.F.R. § 3.102.
Right and Left Knee Disabilities
Criteria & Analysis
The Veteran contends that his service-connected left and right
knee disabilities are more disabling than currently evaluated. A
November 1999 rating decision granted service connection for
right patellar chondromalacia and assigned a 10 percent
disability rating effective March 22, 1999 under Diagnostic Code
5257-5260. The November 1999 rating decision also granted
service connection for left knee patellofemoral pain and assigned
a noncompensable disability rating effective March 22, 1999 under
Diagnostic Code 5257. A February 2005 rating decision assigned a
10 percent disability rating for left knee patella femoral
syndrome effective August 10, 2004 under Diagnostic Code 5010-
5260.
Disability evaluations are determined by the application of the
Schedule For Rating Disabilities, which assigns ratings based on
the average impairment of earning capacity resulting from a
service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part
4.
Where there is a question as to which of two evaluations shall be
applied, the higher evaluation will be assigned if the disability
picture more nearly approximates the criteria required for that
rating. Otherwise, the lower rating will be assigned. 38 C.F.R.
§ 4.7.
In order to evaluate the level of disability and any changes in
condition, it is necessary to consider the complete medical
history of the veteran's condition. Schafrath v. Derwinski, 1
Vet. App. 589, 594 (1991). However, where an increase in the
level of a service-connected disability is at issue, the primary
concern is the present level of disability. Francisco v. Brown,
7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that
a claimant may experience multiple distinct degrees of disability
that might result in different levels of compensation from the
time the increased rating claim was filed until a final decision
is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The
analysis in the following decision is therefore undertaken with
consideration of the possibility that different ratings may be
warranted for different time periods.
It should also be noted that when evaluating disabilities of the
musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration
of functional loss due to pain and weakness causing additional
disability beyond that reflected on range of motion measurements.
DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R.
§ 4.45 provides that consideration also be given to weakened
movement, excess fatigability and incoordination.
Under DC 5257, a 10 percent rating is warranted for slight
recurrent subluxation or lateral instability; a 20 percent rating
is applied for moderate; and a 30 percent rating is applicable
for severe. Under Diagnostic Code 5256 [ankylosis of a knee],
ankylosis that is at a favorable angle in full extension, or in
slight flexion between 0 and 10 degrees, warrants a 30
evaluation.
Under DC 5258, a 20 percent disability rating is available for
dislocated semilunar cartilage with frequent episodes of
"locking," pain, and effusion into the joint. There is no
rating in excess of 10 percent available under DC 5259 for
cartilage removal.
DC 5260 provides ratings based on limitation of flexion of the
leg. Flexion of the leg limited to 45 degrees is rated 10
percent disabling; flexion of the leg limited to 30 degrees is
rated 20 percent disabling; and flexion of the leg limited to
15 degrees is rated 30 percent disabling.
Under Diagnostic Code 5261, limitation of extension of the leg
provides a 10 percent rating if limited to 10 degrees, a 20
percent rating if limited to 15 degrees, a 30 percent rating if
limited to 20 degrees, a 40 percent rating if limited to 30
degrees, and a 50 percent rating if limited to 45 degrees.
Diagnostic Code 5262 provides ratings based on impairment of the
tibia and fibula. Malunion of the tibia and fibula with slight
knee or ankle disability is rated 10 percent disabling; malunion
of the tibia and fibula with moderate knee or ankle disability is
rated 20 percent disabling; and malunion of the tibia and fibula
with marked knee or ankle disability is rated 30 percent
disabling. Nonunion of the tibia and fibula with loose motion,
requiring a brace, is rated 40 percent disabling. 38 C.F.R. §
4.71a.
Normal range of motion for the knee is defined as follows:
flexion, zero degrees to 140 degrees; and extension, 140 degrees
to zero degrees. See 38 C.F.R. § 4.71, Plate II (2010).
Diagnostic Code 5010 provides that arthritis due to trauma that
is substantiated by X-ray findings is to be rated as degenerative
arthritis. Diagnostic Code 5003 provides that degenerative
arthritis that is established by X-ray findings will be rated on
the basis of limitation of motion under the appropriate
diagnostic codes for the specific joint or joints involved.
When there is no limitation of motion of the specific joint or
joints that involve degenerative arthritis, Diagnostic Code 5003
provides a 20 percent rating for degenerative arthritis with X-
ray evidence of involvement of 2 or more major joints or 2 or
more minor joint groups, with occasional incapacitating
exacerbations, and a 10 percent rating for degenerative arthritis
with X-ray evidence of involvement of 2 or more major joints or 2
or more minor joint groups. Note (1) provides that the 20 pct
and 10 pct ratings based on X-ray findings will not be combined
with ratings based on limitation of motion. Note (2) provides
that the 20 percent and 10 percent ratings based on X-ray
findings, above, will not be utilized in rating conditions listed
under Diagnostic Codes 5013 to 5024, inclusive.
When there is some limitation of motion of the specific joint or
joints involved that is noncompensable (0 percent) under the
appropriate diagnostic codes, Diagnostic Code 5003 provides a
rating of 10 percent for each such major joint or group of minor
joints affected by limitation of motion, to be combined, not
added under diagnostic code 5003. Limitation of motion must be
objectively confirmed by findings such as swelling, muscle spasm,
or satisfactory evidence of painful motion.
When there is limitation of motion of the specific joint or
joints that is compensable (10 percent or higher) under the
appropriate diagnostic codes, the compensable limitation of
motion should be rated under the appropriate diagnostic codes for
the specific joint or joints involved. 38 C.F.R. § 4.71a.
Private treatment records from Dr. H.J. dated in August 2003
reflect that there was no deformity of the joints of the knees.
Right knee flexion was to 80 degrees and extension was to 170
degrees. Dr. H.J. noted that normal flexion was to 90 degrees
and normal extension was to 180 degrees. Flexion and extension
of the left knee was normal. Dr. H.J. diagnosed mild
osteoarthritis of the right knee.
The Veteran underwent a VA examination in November 2004. He
reported knee pain. He denied swelling in the joints. He
reported some difficulty negotiating steps.
Upon physical examination, there was no swelling or tenderness of
the joint in both knees. McMurray and drawer signs were negative
in both knees. Both knees were stable to varus and valgus
stress. Left knee range of motion was zero to 125 degrees in the
left knee. Right knee range of motion was zero to 130 degrees.
The grind sign was positive in the left knee. There was a mild
positive patella grind sign on the right. The examiner diagnosed
patella femoral syndrome of both knees. There was no evidence
for degenerative joint disease by physical or by x-ray. There
was a mild loss of function due to pain.
The Veteran underwent another VA examination in May 2007. He
reported daily moderate knee pain. Upon physical examination,
left knee flexion was zero to 130 degrees with pain. Extension
was to zero degrees with no pain. Right knee flexion was zero to
120 degrees with pain. Extension was to zero degrees with no
pain. With regard to both knees, there were no bumps consistent
with Osgood-Schlatters disease, crepitation, mas behind the knee,
clicks or snaps, grinding, instability, patellar abnormality,
meniscus abnormality, or other tendon or bursa. The examiner
diagnosed right patellar chondromalacia and left knee
patellofemoral syndrome. The Veteran was not employed. The
examiner noted that the Veteran's service-connected knee
conditions do not render him unemployable for all physical and/or
sedentary labor. The knee conditions had a mild effect on
chores, recreation, and traveling, a moderate effect on exercise
and sports, and no effect on feeding, bathing, dressing,
toileting, and grooming.
Diagnostic Code 5256 pertains to ankylosis. The evidence of
record does not indicate that ankylosis exists, and the Veteran
does not appear to contend that his knees are ankylosed. It is
clear from the ranges of motion demonstrated on examination and
in the private medical records that the knees are not ankylosed.
Consequently, a higher rating under Diagnostic Code 5256 is not
warranted.
With respect to limitation of extension of the Veteran's knees,
as noted above, although Dr. H.J. found 10 degrees loss of right
knee extension, these results are inconsistent with the November
2004 and May 2007 VA examinations which indicated that extension
was to zero degrees for both knees. Moreover, Dr. H.J.
considered normal extension to be to 180 degrees and thus is
starting from a different vantage point from what the Board
considers to be normal extension. See 38 C.F.R. § 4.71, Plate
II. Consequently, a higher rating under Diagnostic Code 5261 is
not warranted.
The Board has considered whether separate ratings could be
assigned for limitation of flexion and extension that would
result in a higher combined rating. See VAOPGCPREC 9-2004.
Flexion has been limited to no less than 120 degrees, which is a
noncompensable range of motion under Diagnostic Code 5260. This
is true even when the Veteran's complaints of pain are
considered, as the May 2007 VA examination showed that left knee
flexion was to 130 degrees with pain and right knee flexion was
to 120 degrees with pain. The Board notes that Dr. H.J. found
that right knee flexion was to 80 degrees. However, Dr. H.J.
considered normal flexion to be to 90 degrees. Thus, Dr. H.J. is
starting from a different vantage point from what the Board
considers to be normal flexion. See 38 C.F.R.
§ 4.71, Plate II. Moreover, Dr. H.J. found no more than 10
degrees loss of flexion, which would not result in a rating
higher than 10 percent. Thus, separately rating the extension
and flexion would not result in a rating higher than 10 percent.
With regard to Diagnostic Code 5257, there is no persuasive
evidence of recurrent subluxation or lateral instability to
warrant a rating in excess of 10 percent for the knees, or a
separate rating under this Code. The May 2007 VA examiner found
no evidence of instability. Therefore, the Board is unable to
find that a 20 percent rating is warranted under this Code.
With regard to Diagnostic Code 5258, there is no medical evidence
of frequent episodes of joint effusion or locking. Therefore,
the Board is unable to find that a 20 percent rating is warranted
under this Code.
With respect to Diagnostic Code 5262, there is no suggestion that
the knee disorders involve impairment of the tibia and fibula, or
that there otherwise is nonunion or malunion of the tibia or
fibula. A higher rating under Diagnostic Code 5262 is not
warranted.
Accordingly, rating by analogy to Diagnostic Codes 5256, 5261, or
5262 is not warranted.
As previously noted, when evaluating musculoskeletal disabilities
on the basis of limitation of motion, functional loss due to
limited or excess movement, pain, weakness, excess fatigability,
or incoordination is to be considered in the determination of the
extent of limitation of motion. 38 C.F.R. § 4.40, 4.45, 4.59
(2010); DeLuca, 8 Vet. App. at 204-07. For reasons already
discussed, the Board finds that the functional impairment
associated with the Veteran's pain is only mild, and does not
support a higher rating through separate ratings for limitation
of flexion and extension.
Extraschedular Consideration
The Board has considered whether referral of the case for an
extraschedular evaluation pursuant to 38 C.F.R. § 3.321 is
warranted. In general, the schedular disability evaluations are
determined by the application of a schedule of ratings which is
based on average impairment of earning capacity. 38 U.S.C.A. §
1155; 38 C.F.R. Part 4. The application of such schedular
criteria was discussed in great detail above. To accord justice
in an exceptional case where the schedular standards are found to
be inadequate, the RO is authorized to refer the case to the
Chief Benefits Director or the Director, Compensation and Pension
Service for assignment of an extraschedular evaluation
commensurate with the average earning capacity impairment. 38
C.F.R. § 3.321(b)(1).
The criterion for such an award is a finding that the case
presents an exceptional or unusual disability picture with such
related factors as marked interference with employment or
frequent periods of hospitalization as to render impractical
application of regular schedular standards. Id. The Court has
held that the Board is precluded by regulation from assigning an
extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first
instance; however, the Board is not precluded from raising this
question, and in fact is obligated to liberally read all
documents and oral testimony of record and identify all potential
theories of entitlement to a benefit under the law and
regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court
further held that the Board must address referral under 38 C.F.R.
§3.321(b)(1) only where circumstances are presented which the
Director of VA's Compensation and Pension Service might consider
exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227
(1995).
In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified
the analytical steps necessary to determine whether referral for
extraschedular consideration is warranted. Either the RO or the
Board must first determine whether the schedular rating criteria
reasonably describe the Veteran's disability level and
symptomatology. Id. at 115. If the schedular rating criteria do
reasonably describe the Veteran's disability level and
symptomatology, the assigned schedular evaluation is adequate,
referral for extraschedular consideration is not required, and
the analysis stops.
If the RO or the Board finds that the schedular evaluation does
not contemplate the Veteran's level of disability and
symptomatology, then either the RO or the Board must determine
whether the Veteran's exceptional disability picture includes
other related factors such as marked interference with employment
and frequent periods of hospitalization. Id. at 116. If this is
the case, then the RO or the Board must refer the matter to the
Under Secretary for Benefits or the Director of the Compensation
and Pension Service for the third step of the analysis,
determining whether justice requires assignment of an
extraschedular rating. Id.
In this case, an August 2009 Supplemental Statement of the Case
reflects that an extraschedular evaluation for both knees was
previously considered and an extraschedular rating was denied.
Moreover, the medical evidence and the symptoms described by the
Veteran fit within the criteria found in the Diagnostic Codes.
In short, the rating criteria contemplate not only his symptoms
but the severity of his disability.
In sum, for the reasons and bases expressed above, the Board
concludes that a preponderance of the evidence is against the
Veteran's claim of entitlement to evaluations in excess of 10
percent for his service-connected left and right knee
disabilities. The benefits sought on appeal are therefore
denied.
ORDER
Service connection for right ear hearing loss is denied.
A disability rating in excess of 10 percent for a left knee
disability is denied.
A disability rating in excess of 10 percent for the right knee
disability is denied.
REMAND
The Board notes that the Veteran underwent VA examinations in May
2007 with regard to the hand, bilateral foot, bilateral hips,
diabetes, hypertension, arthritis and psychiatric issues. The
Board finds that the VA examinations and reports are inadequate,
given the failure by the examiners to determine the etiology of
any hand, bilateral foot, bilateral hips, diabetes, hypertension,
arthritis and psychiatric disabilities. The Board finds that the
Veteran should be scheduled for additional VA examinations with
regard to the hand, bilateral foot, bilateral hips, diabetes,
hypertension, arthritis and psychiatric issues. See Barr v.
Nicholson, 21 Vet. App. 303, 311-12 (2007).
The Veteran has also stated that several disabilities are
secondary to other disabilities. In November 2004, he stated
that the right leg, bilateral foot, and left hip disabilities are
secondary to his service-connected bilateral knee disabilities.
The Board notes that the Veteran has voiced an argument in the
October 2005 substantive appeal that his psychiatric disability
is secondary to his service-connected disabilities.
Additionally, in August 2010, the Veteran stated that he has
degenerative joint disease secondary to hip disabilities. The
Board notes that the previous VA examinations and reports did not
address whether the right leg, bilateral foot, hip, arthritis,
and psychiatric disabilities are caused or aggravated by any
service-connected disabilities.
Disability which is proximately due to or the result of a
service-connected disease or injury shall be service connected.
38 C.F.R. § 3.310 (2010). The provisions of 38 C.F.R. § 3.310
were amended, effective from October 10, 2006; however, the new
provisions require that service connection not be awarded on an
aggravation basis without establishing a pre-aggravation baseline
level of disability and comparing it to current level of
disability. 71 Fed. Reg. 52744-47 (Sept. 7, 2006). Although the
stated intent of the change was merely to implement the
requirements of Allen v. Brown, 7 Vet. App. 439 (1995), the new
provisions amount to substantive changes to the manner in which
38 C.F.R. § 3.310 has been applied by VA in Allen-type cases
since 1995. Consequently, the Board will apply the older version
of 38 C.F.R. § 3.310, which is more favorable to the claimant
because it does not require the establishment of a baseline
before an award of service connection may be made and the
Veteran's claims were filed prior to the effective date of the
revised regulation. Under the circumstances, the Board believes
that VA examinations with opinion with regard to the right leg,
bilateral foot, hip, arthritis, and psychiatric disabilities are
necessary to comply with 38 C.F.R. § 3.159(c)(4).
The Board notes that the Veteran underwent a VA audiological
examination in June 2010. However, this examination did not
address the effect of the Veteran's left ear hearing loss on his
ability to work. Accordingly, the Veteran should be afforded
another audiological examination, to include a discussion of the
effect of the Veteran's service-connected disability on his
ability to work. See Friscia v. Brown, 7 Vet. App. 294 (1995);
Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007).
With regard to the TDIU claim, the Veteran currently is in
receipt of service connection for right and left knee
disabilities, evaluated as 10 percent disabling each, as well as
tinnitus, evaluated as 10 percent disabling; and left ear hearing
loss, evaluated as zero percent disabling. A TDIU may be awarded
when there are two or more disabilities, at least one disability
must be ratable at 40 percent or more, and any additional
disabilities must result in a combined rating of 70 percent or
more, and the disabled person must be unable to secure or follow
a substantially gainful occupation. See 38 C.F.R. § 4.16(a).
Because the other issues are being remanded, and because
adjudication of these issues may impact adjudication of the
Veteran's TDIU claim, the Board concludes that these claims are
inextricably intertwined. See Harris v. Derwinski, 1 Vet. App.
180, 183 (1991). Given the foregoing, the Veteran's TDIU claim
also must be remanded.
Accordingly, the case is REMANDED for the following actions:
1. The Veteran should be scheduled for an
appropriate VA examination to determine
the nature and etiology of any current
right leg disability. It is imperative
that the claims file be made available to
the examiner for review in connection with
the examination. Following a thorough
evaluation, during which all indicated
tests are performed, the examiner should:
a) determine if it is at least as likely as
not (a 50% or higher degree of probability)
that any current right leg disability was
manifested during the Veteran's active duty
service. If not;
b) opine whether any such right leg
disability is at least as likely as not
related to the Veteran's service-connected
bilateral knee disabilities. If not;
c) opine whether any such right leg
disability is aggravated by the Veteran's
service-connected bilateral knee
disabilities;
d) provide detailed rationale, with
specific references to the record, for the
opinions provided. If the examiner cannot
respond without resorting to speculation,
he should explain why a response would be
speculative.
2. The Veteran should be scheduled for a
VA examination to determine the nature and
etiology of any current right hand
disability. It is imperative that the
claims file be made available to the
examiner for review in connection with the
examination. After reviewing the claims
file and examining the Veteran, the
examiner should offer an opinion as to
whether it is at least as likely as not (a
50% or higher degree of probability) that
any current right hand disability is
related to service. A clear rationale
should be provided for all opinions
rendered. If the examiner cannot respond
without resorting to speculation, he
should explain why a response would be
speculative.
3. The Veteran should be scheduled for an
appropriate VA examination to determine
the nature and etiology of any current
bilateral foot disability. It is
imperative that the claims file be made
available to the examiner for review in
connection with the examination.
Following a thorough evaluation, during
which all indicated tests are performed,
the examiner should:
a) determine if it is at least as likely as
not (a 50% or higher degree of probability)
that any current bilateral foot disability
was manifested during the Veteran's active
duty service. If not;
b) opine whether any such bilateral foot
disability is at least as likely as not
related to the Veteran's service-connected
bilateral knee disabilities. If not;
c) opine whether any such bilateral foot
disability was aggravated by the Veteran's
service-connected bilateral knee
disabilities;
d) provide detailed rationale, with
specific references to the record, for the
opinions provided. If the examiner cannot
respond without resorting to speculation,
he should explain why a response would be
speculative.
4. The Veteran should be scheduled for an
appropriate VA examination to determine
the nature and etiology of any current
bilateral hip disability. It is
imperative that the claims file be made
available to the examiner for review in
connection with the examination.
Following a thorough evaluation, during
which all indicated tests are performed,
the examiner should:
a) determine if it is at least as likely as
not (a 50% or higher degree of probability)
that any current bilateral hip disability
was manifested during the Veteran's active
duty service. If not;
b) opine whether any such bilateral hip
disability is at least as likely as not
related to the Veteran's service-connected
bilateral knee disabilities. If not;
c) opine whether any such bilateral hip
disability is aggravated by the Veteran's
service-connected bilateral knee
disabilities;
d) provide detailed rationale, with
specific references to the record, for the
opinions provided. If the examiner cannot
respond without resorting to speculation,
he should explain why a response would be
speculative.
5. The Veteran should be scheduled for a
VA examination to determine the nature and
etiology of any current diabetes mellitus.
It is imperative that the claims file be
made available to the examiner for review
in connection with the examination. After
reviewing the claims file and examining
the Veteran, the examiner should offer an
opinion as to whether it is at least as
likely as not (a 50% or higher degree of
probability) that any current diabetes
mellitus is related to service. A clear
rationale should be provided for all
opinions rendered. If the examiner cannot
respond without resorting to speculation,
he should explain why a response would be
speculative.
6. The Veteran should be scheduled for a
VA examination to determine the nature and
etiology of any current hypertension. It
is imperative that the claims file be made
available to the examiner for review in
connection with the examination. After
reviewing the claims file and examining
the Veteran, the examiner should offer an
opinion as to whether it is at least as
likely as not (a 50% or higher degree of
probability) that any current hypertension
is related to service. A clear rationale
should be provided for all opinions
rendered. If the examiner cannot respond
without resorting to speculation, he
should explain why a response would be
speculative.
7. The Veteran should be scheduled for an
appropriate VA examination to determine
the nature and etiology of any current
neck and back disability. It is
imperative that the claims file be made
available to the examiner for review in
connection with the examination.
Following a thorough evaluation, during
which all indicated tests are performed,
the examiner should:
a) determine if it is at least as likely as
not (a 50% or higher degree of probability)
that any current neck and back disability
was manifested during the Veteran's active
duty service. If not;
b) and if after readjudicating the
bilateral hip disability claim, the RO
grants service connection for the
bilateral hip disability, then the
examiner should also opine whether any
such neck and back disability is at least
as likely as not related to the Veteran's
bilateral hip disability. If not;
c) opine whether any such neck and back
disability is aggravated by the Veteran's
bilateral hip disability;
d) provide detailed rationale, with
specific references to the record, for the
opinions provided. If the examiner cannot
respond without resorting to speculation,
he should explain why a response would be
speculative.
8. The Veteran should be scheduled for an
appropriate VA examination to determine
the nature and etiology of any current
acquired psychiatric disability. It is
imperative that the claims file be made
available to the examiner for review in
connection with the examination.
Following a thorough evaluation, during
which all indicated tests are performed,
the examiner should:
a) determine if it is at least as likely as
not (a 50% or higher degree of probability)
that any current acquired psychiatric
disability was manifested during the
Veteran's active duty service. If not;
b) after readjudicating the remaining
service connection claims, the examiner
should also
opine whether any such acquired
psychiatric disability is at least as
likely as not related to the Veteran's
service-connected disabilities. If not;
c) opine whether any such psychiatric
disability was aggravated by the Veteran's
service-connected disabilities;
d) provide detailed rationale, with
specific references to the record, for the
opinions provided. If the examiner cannot
respond without resorting to speculation,
he should explain why a response would be
speculative.
9. The RO should make arrangements with
the appropriate VA medical facility for
the Veteran to be afforded an audiological
examination. It is imperative that the
claims file be made available to the
examiner for review in connection with the
examination. The examination should
include all indicated audiometric studies.
a) The examiner is requested to discuss
whether the Veteran's left ear hearing
loss renders the Veteran unable to engage
in substantially gainful employment, and
the examiner should describe the effect of
left ear hearing loss on the Veteran's
occupational functioning and daily
activities, supporting such opinion with
reference to manifested symptomatology and
limitations. See Martinak v. Nicholson,
21 Vet. App. 447, 455-56 (2007).
b) If the examiner cannot express any of
the requested opinions, the examiner
should explain the reasons therefore, to
include whether additional records and/or
diagnostic studies would be helpful in
providing an opinion, and/or whether the
opinion(s) cannot be provided because the
limits of medical knowledge have been
exhausted.
10. After completion of the foregoing,
readjudicate the claims. Then, the RO
should readjudicate the Veteran's TDIU
claim. If the benefits sought on appeal
remain denied, the Veteran and his
representative should be provided a
supplemental statement of the case. An
appropriate period of time should be
allowed for response.
The Veteran and his representative have the right to submit
additional evidence and argument on the matters the Board has
remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This case must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2010).
______________________________________________
Thomas H. O'Shay
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs